Citation Nr: 9815702
Decision Date: 05/21/98 Archive Date: 05/29/98
DOCKET NO. 94-31 217 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to service connection for hearing loss.
2. Entitlement to an increased rating for residuals of a
right knee injury, currently assigned a 10 percent
evaluation.
3. Entitlement to an increased (compensable) evaluation for
residuals of a right elbow injury.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. Hudson, Counsel
INTRODUCTION
The veteran had active service from September 1965 to October
1968, from January 1969 to October 1974, and from April 1992
to July 1993.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a regional office (RO) rating decision
of January 1994, which denied the veteran’s claim for service
connection for a right elbow disability and an increased
rating for right knee injury residuals. In April 1996, the
Board remanded the case to the RO for further development.
In August 1996, the RO granted service connection for the
residuals of a right elbow injury, and assigned a
noncompensable rating. In September 1996, the veteran filed
a claim for a compensable rating for his right elbow injury
residuals, and for service connection for hearing loss.
These claims were denied by rating decision dated in November
1996, and the veteran perfected an appeal as to both issues.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that due to extensive noise
exposure while he was on active duty, particularly in his
position as Gunner’s Mate Technician, he has developed a
hearing loss disability. In connection with his current job,
hearing loss was disclosed, and he claims that his only
significant noise exposure was while he was in service. In
addition, the veteran contends that he suffers from frequent
aching, numbness and paresthesias in his right elbow. The
veteran also contends that he suffers from constant pain and
episodes of giving way of the right knee, causing him to
fall.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file(s). Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the evidence supports the
grant of service connection for bilateral hearing loss, and
supports the grant of a 10 percent rating for right elbow
injury residuals.
It is further the decision of the Board that the
preponderance of the evidence is against an evaluation in
excess of 10 percent for arthritis of the right knee.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant’s claim has been obtained by the
originating agency.
2. The veteran had significant noise exposure in service in
his position as gunner’s mate.
3. The veteran currently has hearing loss as demonstrated by
a 40 decibel threshold level in each ear at 4,000 hertz.
4. The currently demonstrated hearing loss was due to
inservice noise exposure.
5. Right elbow injury residuals are manifested by objective
signs of pain in the ulnar notch, without identifiable
neurological deficit.
6. The veteran has arthritis of the right knee, manifested
by tender crepitation on motion, tenderness to palpation,
moderate quadriceps atrophy, without limitation of motion,
swelling, effusion, instability or subluxation.
CONCLUSIONS OF LAW
1. Bilateral hearing loss was incurred in active service.
38 U.S.C.A. §§ 1110, 1131, 5107 (West 1996); 38 C.F.R.
§ 3.303 (1997).
2. The schedular criteria for a 10 percent evaluation for
right elbow injury residuals have been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1996); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10,
4.40, 4.41, 4.45, 4.59, 4.124, 4.124a, Code 8716 (1997).
3. The criteria for an evaluation in excess of 10 percent
for arthritis of the right knee have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 1996); 38 C.F.R. §§ 4.1, 4.2,
4.7, 4.10, 4.40, 4.41, 4.45, 4.59, Part 4, Codes 5003, 5010
(1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Service connection—hearing loss
Initially, we find that the appellant’s claim is well-
grounded; that is, it is plausible. 38 U.S.C.A. § 5107(a);
Murphy v. Derwinski, 1 Vet.App. 78 (1991). The relevant
facts have been properly developed, and, accordingly, the
statutory obligation of the Department of Veterans Affairs
(VA) to assist in the development of the appellant’s claim
has been satisfied. Id.
Service connection may be established for chronic disability
resulting from disease or injury incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110, 1131 (West 1996); 38 C.F.R. §
3.303 (1997). In addition, service connection may be granted
for any disease diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes
that the disease was incurred in service. 38 C.F.R.
§ 3.303(d).
Service medical records do not contain any audiogram reports
for the veteran’s latter two tours of duty. However, there
is evidence that the service medical records are incomplete;
for example, a “PROBLEM SUMMARY LIST” indicates that
several tests, including an audiogram, were either conducted,
scheduled, or indicated in June 1992. None of these tests
are of record.
Subsequent to service, a high tone nerve hearing loss was
diagnosed in August 1996 by J. R. House, III, M.D. In March
1997, Dr. House wrote that the veteran’s hearing loss was the
type that was associated with loud noises, and the history
the veteran provided of loud noise exposure in the military
could very well be a large contributing factor in his noise
induced hearing loss.
Subsequent to service, the only medical evidence regarding
the veteran’s hearing status is a VA examination report of
October 1993, which disclosed pure tone threshold levels, in
the right ear, at 500, 1,000, 2,000, 3,000 and 4,000 hertz of
15, 15, 15, 25, and 40 decibels, respectively. Corresponding
findings in the left ear were 15, 15, 20, 25, and 40
decibels, respectively. Speech recognition was 96 percent
bilaterally. The 40 decibel threshold level in each ear at
4, 000 hertz constitutes a hearing loss disability for VA
purposes. 38 C.F.R. § 3.385 (1995).
On the examination, the veteran reported a history of working
around guns as a gunner’s mate, with exposure to loud noises
very frequently. He did not notice any difficulties while he
was in service. After service, in connection with a job as a
police dispatcher, it was noted that he could not hear
appropriately, and an examination showed a bilateral high
frequency neurosensory hearing loss. The examiner noted that
in questioning the veteran, there was a history of some
problems hearing in crowded rooms or with background noise
going back several years. It was concluded that he had a
bilateral mild to moderate high frequency neurosensory
hearing loss, secondary to noise exposure while in service.
Examination of the available service department records
documents that the veteran did service as a gunner’s mate in
service. In addition, we find his statements and testimony
regarding his inservice noise exposure to be credible. We
also note that it is impossible, based on the evidence of
record, to determine whether the veteran had an identifiable
hearing loss at separation, due to the absence of any hearing
test reports. The VA examination report attributed the
veteran’s hearing loss to noise exposure in service, and his
private physician has indicated that the hearing loss is
consistent with such exposure. There is no controverting
medical evidence, and the Board is prohibited from making
conclusions based on its own medical judgment. Colvin v.
Derwinski, 1 Vet.App. 171 (1991). In view of the foregoing,
the evidence supports the grant of service connection for
bilateral hearing loss disability. 38 U.S.C.A. § 5107(b).
Increased rating—right elbow disorder
The appellant’s contentions regarding the severity of his
disability constitute a plausible or well-grounded claim.
Shipwash v. Brown, 8 Vet.App. 218 (1995). The relevant
facts have been properly developed, and, accordingly, the
statutory obligation of the Department of Veterans Affairs
(VA) to assist in the development of the appellant’s claim
has been satisfied. 38 U.S.C.A. § 5107(a) (West 1996);
Murphy v. Derwinski, 1 Vet.App. 78 (1991).
Disability evaluations are based upon the average impairment
of earning capacity as determined by a schedule for rating
disabilities. 38 U.S.C.A. § 1155 (West 1996); 38 C.F.R.
Part 4 (1997). Separate rating codes identify the various
disabilities. 38 C.F.R. Part 4 (1997). In determining the
current level of impairment, the disability must be
considered in the context of the whole recorded history,
including service medical records. 38 C.F.R. §§ 4.2, 4.41
(1997); Schafrath v. Derwinski, 1 Vet.App. 589 (1991).
Nevertheless, the present level of disability is of primary
concern, and the past medical reports do not have precedence
over current findings. Francisco v. Brown, 7 Vet.App. 55
(1994). An evaluation of the level of disability present
also includes consideration of the functional impairment of
the veteran’s ability to engage in ordinary activities,
including employment, and the effect of pain on the
functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59
(1997); Schafrath.
The veteran’s service-connected right elbow injury residuals
are evaluated under diagnostic code 8716, referring to
neuralgia of the ulnar nerve. Neuralgia, characterized
usually by a dull and intermittent pain, of typical
distribution so as to identify the nerve, is to be rated as
paralysis, limited to a maximum equal to moderate incomplete
paralysis. 38 C.F.R. § 4.124 (1997). Neuritis,
characterized by loss of reflexes, muscle atrophy, sensory
disturbances, and constant pain, at times excruciating,
without organic changes, is similarly rated with the maximum
equal to moderate incomplete paralysis. 38 C.F.R. § 4.123
(1997). “Incomplete paralysis" indicates a degree of lost
or impaired function substantially less than for complete
paralysis. When the involvement is wholly sensory, the rating
should be for the mild, or at most, the moderate degree.
38 C.F.R. § 4.124a, DISEASES OF THE PERIPHERAL NERVES (1996). For
the ulnar nerve, mild paralysis of the dominant extremity
warrants a 10 percent rating; moderate paralysis a 30 percent
rating; and severe paralysis a 40 percent rating. 38 C.F.R.
Part 4, Code 8516.
On a VA neurological examination in May 1996, the veteran
complained of a hot burning sensation in the posterior
portion of the right elbow when he did repetitive or heavy
exertion of his right upper extremity, which radiated from
the elbow. There was no radicular paresthesia and no nerve
distribution paresthesia or sensory loss. However, he had
considerable pain, especially on repetitive exertion. On
examination, his muscle strength and tone were normal, and
there was no atrophy, fasciculation or abnormal movement
detected. He had no limitation of motion in the upper
extremity, or sensory deficits on extension. However, he was
hypersensitive to palpation over the area of the right elbow,
especially over the right olecranon notch, posteriorly. When
the area of the ulnar nerve was irritated, it was
uncomfortable, but he did not have any nerve type radiation
of pain or paresthesias as a result of it. The impression
was that although there was no significant neurologic deficit
resulting from the elbow injury, he had an area of
hyperalgesia and irritability in the area of the ulnar groove
of the olecranon notch related to the injury.
Additional examinations contained similar findings and
complaints. The orthopedic examination in June 1996 was
negative except for slight tenderness over the right ulnar
notch, and the impression was ulnar entrapment syndrome of
the right elbow, without neurologic deficit. A VA
examination in April 1997 similarly disclosed tenderness
around the ulnar nerve at the ulnar notch, with no other
positive symptoms referable to the right elbow. The
impression was right ulnar neuritis without objective
evidence of neurologic deficit. Neurological examination in
April 1997 revealed sensitivity to touch and pressure over
the posterior portion of the right elbow in the area of the
ulnar nerve, without a typical Tinel’s sign. It was felt
that there was no lasting neurological deficit present,
although he may well have mild compression neuropathies of
the ulnar or median nerves.
These examination reports are consistent in demonstrating
that although the veteran does not have evidence of
neurological deficit, he does have objective evidence of pain
in the area of the ulnar nerve. Additionally, the veteran
has provided credible testimony that his elbow causes him
pain, particularly on repetitive motion. The United States
Court of Veterans Appeals (Court) has indicated that pain
causing functional impairment is impairment in earning
capacity, and compensable. DeLuca v. Brown, 8 Vet.App. 202
(1995). Moreover, the rating criteria for neuralgia
specifically contemplates pain. Accordingly, the disability
picture more nearly approximates the criteria required for a
10 percent rating, representing mild impairment. 38 C.F.R.
§ 4.7, Part 4, Code 8716.
In view of the absence of any objective indications of
neurological deficit or other functional impairment due to
pain, such as limitation of motion or weakened movement, an
evaluation in excess of 10 percent is not warranted.
Further, there is no additional symptomatology present which
would justify an additional rating under another diagnostic
code. See Esteban v. Brown, 6 Vet.App. 259 (1994). Finally,
the Court has held that the Board is precluded by regulation
from assigning an extraschedular rating under 38 C.F.R.
§ 3.321(b)(1) in the first instance. Floyd v. Brown, 9 Vet.
App. 88 (1996). The Court has further held that the Board
must address referral under 38 C.F.R. § 3.321(b)(1) only
where circumstances are presented which the Director of the
VA’s Compensation and Pension Service might consider
exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218,
227 (1995). Having reviewed the record with these mandates
in mind, the Board finds no basis for further action on this
question, and an evaluation in excess of 10 percent is not
warranted.
Increased rating—right knee injury residuals
The appellant’s contentions regarding the severity of his
disability constitute a plausible or well-grounded claim.
Shipwash v. Brown, 8 Vet.App. 218 (1995). The relevant
facts have been properly developed, and, accordingly, the
statutory obligation of the Department of Veterans Affairs
(VA) to assist in the development of the appellant’s claim
has been satisfied. 38 U.S.C.A. § 5107(a) (West 1991);
Murphy v. Derwinski, 1 Vet.App. 78 (1991).
The veteran injured his right knee in service, and knee
strain and degenerative joint disease were diagnosed.
However, X-rays taken in connection with a VA examination in
September 1993 did not disclose arthritis in the right knee.
Based on the findings of tenderness to palpation, and pain
with slightly increased apprehension of the lateral patella
subluxation, the veteran was granted service connection and
assigned a 10 percent rating for residuals of a right knee
injury, under diagnostic code 5257. Diagnostic code 5257,
which pertains to other impairment of the knee, recurrent
subluxation or lateral instability, provides for a 10 percent
rating for slight impairment, a 20 percent rating for
moderate impairment, and a 30 percent rating for severe
impairment of the knee. 38 C.F.R. Part 4, Code 5257.
In connection with his current appeal, the veteran submitted
a report of an evaluation conducted in August 1992 by G.
Barrett, M.D., who reported a preliminary diagnosis of
patellar knee cap dislocation, which would require physical
therapy with a brace to stabilize the patella. However, this
evaluation, conducted while the veteran was on active duty,
occurred shortly after the injury to the knee. In contrast,
the VA examination in September 1993, subsequent to service,
found the knee to be stable. Although in testimony provided
at a hearing before a hearing officer in May 1995, the
veteran stated that, in addition to constant pain in the
knee, the knee occasionally gave out on him. Nevertheless,
on a VA examination in June 1996, the examiner was unable to
sublux the knee, and the ligaments were stable. Likewise,
there was no subluxation or instability on the April 1997
examination. Although the veteran can comment regarding his
subjective symptoms, the clinical presence of instability or
subluxation is a medical determination, and, hence, medical
evidence is required to establish the presence of the
symptoms. See Heuer v. Brown, 7 Vet.App. 379, 384 (1995).
Consequently, the preponderance of the evidence is against
the presence of instability or subluxation of the right knee,
as contemplated by diagnostic code 5257.
However, X-rays on the examinations disclosed minimal right
patellofemoral osteoarthritis. In view of the presence of
arthritis, as well as the absence of any medical findings
subsequent to service demonstrating the presence of
instability or subluxation, we believe that the veteran’s
right knee injury residuals are more appropriately rated as
arthritis. In this regard, although VA specifically has
found that limitation of motion and instability contemplated
under diagnostic code 5257 do not overlap, since the veteran
has specifically been noted to be without instability in the
right knee, a separate evaluation is not warranted. See
VAOPGCPREC 23-97 (July 1997).
Degenerative or traumatic arthritis established by X-ray
findings will be rated on the basis of limitation of motion
under the appropriate diagnostic codes for the specific joint
or joints involved. When, however, the limitation of motion
of the specific joint or joints involved is noncompensable
under the appropriate diagnostic codes, a rating of 10
percent is for application for each such major joint or group
of minor joints affected by limitation of motion, to be
combined, not added under diagnostic code 5003. Limitation
of motion must be objectively confirmed by findings such as
swelling, muscle spasm, or satisfactory evidence of painful
motion. In the absence of limitation of motion, X-ray
evidence of involvement of 2 or more major joints or 2 or
more minor joint groups, warrants a 10 percent evaluation;
with the addition of occasional incapacitating exacerbations,
a 20 percent evaluation is warranted. 38 C.F.R. Part 4,
Codes 5003, 5010 (1997).
On examination in June 1996, range of motion was from full
extension to flexion of 135 degrees. Consequently, he does
not have limitation of motion warranting a compensable
evaluation on that basis. See 38 C.F.R. Part 4, Code 5260,
which requires limitation of flexion to 45 degrees for a
compensable evaluation, and Code 5261, which provides for a
10 percent rating for limitation of extension to 10 degrees,
and a 20 percent rating for limitation of extension to 15
degrees.
Although the veteran does not have limitation of motion, he
exhibited moderate, tender retropatellar crepitation on
examination in June 1996. He had moderate quadriceps atrophy
and tenderness over the medial joint line as well. On the VA
examination of April 1997, he had crepitation, described as
mild at that time. Although there was tenderness immediately
superior and lateral to the patella, there was no tenderness
over either joint line.
However, the veteran’s symptoms of tenderness, crepitation,
and quadriceps atrophy are contemplated by the compensable
evaluation currently in effect. Moreover, factors such as
functional loss due to pain on motion, weakened movement,
excess fatigability, lost endurance, swelling or
incoordination, are also contemplated by the 10 percent
evaluation. See 38 C.F.R. §§ 4.40, 4.45, DeLuca v. Brown,
8 Vet.App. 202 (1995). In this regard, the veteran’s atrophy
of the quadriceps, reflecting functional loss apparently due
to pain, has been considered in the symptomatology warranting
a 10 percent rating. He does not have any limitation of
motion due to pain, swelling, or other complaints or abnormal
findings indicative of an increased rating.
In addition, the remaining diagnostic codes pertaining to the
knee do not provide for a separate rating for the veteran’s
right knee. In this regard, only symptoms which are not
“duplicative of or overlapping with the symptomatology” of
the other condition warrants a separate rating. See
38 C.F.R. § 4.14 (1997), Esteban v. Brown, 6 Vet.App. 259,
262 (1994). There is no evidence that the veteran’s knee is
ankylosed. 38 C.F.R. Part 4, Code 5256 (1997). Regarding
diagnostic codes 5258 and 5259, pertaining to, respectively,
dislocation and removal of the semilunar cartilage, frequent
episodes of “locking” have not been clinically
demonstrated. Moreover, the semilunar cartilage has not been
removed. Consequently, there is no evidence suggesting that
an additional disability rating under a separate diagnostic
code is appropriate. Accordingly, a question as to which of
two evaluations to apply has not been presented, and the
disability picture does not more nearly approximate the
criteria required for the next higher rating. 38 C.F.R.
§ 4.7 (1996).
Finally, the United States Court of Veterans Appeals (Court)
has held that the Board is precluded by regulation from
assigning an extraschedular rating under 38 C.F.R. §
3.321(b)(1) in the first instance. Floyd v. Brown, 9
Vet.App. 88 (1996). The Court has further held that the
Board must address referral under 38 C.F.R. § 3.322(b)(1)
only where circumstances are presented which the Director of
the VA’s Compensation and Pension Service might consider
exceptional or unusual. Shipwash v. Brown, 8 Vet.App. 218,
227 (1995). Having reviewed the record with these mandates
in mind, the Board finds no basis for further action on this
question.
ORDER
Service connection for bilateral hearing loss is granted.
An evaluation of 10 percent for right elbow injury residuals
is granted, subject to regulations governing the payment of
monetary benefits.
An evaluation in excess of 10 percent for arthritis of the
right knee is denied.
JEFF MARTIN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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